Abid Mohamood Butt v Francis Macharia Wachira & 7 others [2021] KEELC 3428 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that defendants cannot re-open their case just because they disagree with their lawyer's strategy—and must pay the winning side's costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants made out a case for re-opening the defence case
Application dismissed. Disagreement with counsel's litigation strategy is not sufficient reason; there was unexplained delay and no disclosed additional evidence.
The court applied the principles in Susan Wavinya Mutavi v Isaac Njoroge on re-opening cases: the discretion is judicial; pleas to fill evidentiary gaps, or founded on inordinate unexplained delay, or where the evidence could have been obtained with reasonable diligence, will be rejected. The Defendants were represented throughout; the choice to call one witness was a legitimate professional decision. The delay of about six months after closure of trial was unexplained, the proposed evidence was not disclosed, and re-opening would delay a suit already pending judgment for two years, prejudicing the Plaintiff.
Whether the Defendants were denied a fair hearing under Article 50 of the Constitution
No. They were accorded a reasonable opportunity to be heard on 31st July 2019 and opted to call one witness and close their case.
Article 50 guarantees a reasonable opportunity of being heard, not a right for every litigant to testify personally in every suit. The Defendants were present and represented when their advocate called one witness; the number of witnesses is immaterial since quality, not quantity, of evidence matters. Their dissatisfaction with counsel's strategy did not amount to a denial of hearing.
Costs of the application
Costs awarded to the Plaintiff as the successful party.
Under the proviso to Section 27 of the Civil Procedure Act, costs follow the event. The court found no good reason to deprive the successful Plaintiff of the costs of the application, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd.
Legal principles established
#- It is not open to litigants to apply to re-open a case every time they disagree with the professional judgment of their advocates.
- A party is bound by the decisions and acts of professional judgment of his appointed advocate.
- Every litigant need not testify in every suit; the requirement is a reasonable opportunity of being heard.
- Costs follow the event unless the court, for good reason, directs otherwise.
Court orders
#- 1.The notice of motion dated 30th January, 2020 by the 1st – 3rd and 5th - 9th Defendants is dismissed.
- 2.Costs of the application awarded to the Plaintiff.
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21); Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abid Mohamood Butt v Francis Macharia Wachira & 7 others [2021] KEELC 3428 (KLR)", Case Analysis (2021). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3428/eng@2021-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.